Karnataka High Court
State Of Karnataka vs Syed Fareed on 8 April, 2002
Equivalent citations: 2002CRILJ2857, II(2002)DMC398, 2002 CRI. L. J. 2857, 2003 AIR - KANT. H. C. R. 122, (2002) 2 DMC 398, (2003) 1 HINDULR 528
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT M.F. Saldanha, J.
1. We have heard the learned Addl. S.P.P., the learned Advocate who represents the respondent as also the learned Advocate E.R. Diwakar who has been appointed by us as Amicus Curiae Counsel. The Court had the benefit of hearing both the learned Advocates who have represented the respondent and the reason for this is because despite notice from this Court the respondent had remained unrepresented earlier. We, therefore, appointed learned Advocate E.R. Diwakar as Amicus Curiae. He has read the record, got ready with the case and he has advanced certain submission. In the meanwhile as often happens the accused has engaged his own learned Advocate and we have heard the learned Advocate Mr. Gachchinamath also on behalf of the respondent-accused.
2. The learned additional S.P.P. is fully justified in his submission that the evidence of P.W. 1-Bismillabi who is the second wife of the accused is virtually flawless. Her evidence is also corroborated by the medical evidence which established that she had sustained minor burn injuries. She has pointed out to the Court that when the accused set her saree on fire she immediately threw the garment off and extinguished the flames and this was how she saved herself. The learned Trial Judge has, without any due application of mind, acquitted the accused and there is really no justification for passing of this order.
3. It is true that the respondent's learned Advocates have harped on certain significant aspects. The first being that the injuries are very minor and that the Doctor has admitted that he did not smell any oil on the clothes when the injured was brought to the hospital, the obvious reason for this is because Bismillabi herself has pointed out that she pulled the saree off and threw it away in order to avoid getting burnt and, consequently, that this was a case in which edible oil has been used and that too in a small quantity and that is the obvious reason why there was no smell of kerosene oil, unlike all the other wife burning cases where the accused use kerosene oil.
4. The respondent's learned Advocates have also pointed out that there is 47 hours' delay in lodging the complaint. Again, the Trial Court has totally overlooked the explanation given by Bismillabi who has pointed out that the accused had threaten to kill her if she informed the authorities as to what had happened and it was only after the lapse of almost two days that she was able to get to the police station. Also, the learned Advocates have submitted that in an incident of this type, obviously the evidence of neighbours or third parties all of whom are independent person would be the best corroborative evidence. The incident in question has taken place inside the house and it is nobodys case that any third person was either present or has witnessed the incident and, consequently, there can be no question of the Court wanting independent evidence. We need to bring it to the notice of the Trial Courts once and for all that in cases of domestic violence or in cases of violence within close quarters, that obviously there will be no outsiders who could have or would have witnessed the incident and this habit of acquitting the accused on the ground that independent evidence was necessary is totally incorrect and will have to be deprecated. We need to also point out that if the evidence of the victim is trustworthy, if it has withstood cross-examination and if it is corroborated by the medical evidence, then there is no ground on which the Trial Court can reject such evidence. In the present case, after a very careful consideration of the records which we have done after calling for the records, we accept the defence case that the material may not be strong enough to sustain the charge punishable under Section 307, I.P.C. and, consequently, we confirm the order of acquittal under this section. As far as the charge under Section 498-A, I.P.C. is concerned, the evidence clearly establishes the guilt of the accused and we accordingly set aside the order of acquittal recorded in his favour under this section and we convict the accused for the offence punishable under Section 498-A, I.P.C.
5. The respondent's learned Advocate have advanced a strong plea that the incident is an old one and secondly, that there is every possibility that the parties have made up or even may be living together. In fact, time was sought for the purpose of verifying this last aspect, but we have declined the grant of any further time as the appeal has been heard and secondly because we have taken that aspect into consideration. Only because the accused is a teacher and we have consideration for the two daughters we refrain from awarding a further jail sentence, but in our considered view, it is very necessary having regard to the seriousness of the incident to impose a heavy fine on the accused. We accordingly direct that the accused shall pay a fine quantified at Rs. 20,000/- and that this fine shall be deposited in the Trial Court within an outer limit of six months from today, failing which the Trial Court to recover the same from the accused. Once the fine amount is deposited, the Trial Court shall ensure that the amount is deposited in a Nationalised Bank having a branch close to the place where Bismillabi is staying. The amount shall be deposited as a long-term fixed deposit bearing the maximum rate of interest renewal for further periods so that the amount in question is not withdrawn for the next 20 years. The Bank shall also be instructed that the interest accruable on the amount shall be paid to Bismillabi every quarter. There shall also be a mandate that under no circumstances shall the Bank permit any premature withdrawal nor shall the Bank permit any loan or overdraft against the deposit in question. The deposit receipt shall be handed over to the beneficiary by the Bank.
6. With these directions, the appeal which partially succeeds to stand disposed of. The Bank may be informed, that if Bismillabi passes away in the meanwhile, in that event the amount in question shall be divided equally between her two daughters and that under no circumstances shall any part of the amount be paid to or received by the accused. We have not awarded any in-default sentence and it is made clear that if the accused defaults in depositing the amount that the Trial Court shall recover the same if necessary by using coercive means.
The office to pay a sum of Rs. 1,000/- to learned Advocate E.R. Diwakar who has appeared as Amicus Curiae.